Writing for the Supreme Court in McCleskey v. Kemp, Justice Lewis F. Powell, Jr. authored a maximalist decision that transcended capital practice and effectively barred constitutional claims of systemic inequality. Powell would ultimately come to regret the ruling, announcing in retirement that the death penalty should be abolished entirely. Powell struggled, then, with an apparent tension between moral conviction and purported legal command—a tension that Robert Cover called a “moral-formal dilemma.” Cover used this concept to evaluate the decision-making processes of antebellum abolitionist judges asked to apply the fugitive slave acts. These judges knew better but repeatedly refused to do better, resorting instead to a set of methodological crutches to make immoral outcomes appear legally inevitable. And, in McCleskey, Powell relied upon some of the same crutches.

In other ways, however, Powell’s opinion does not fit neatly within the Cover mold. Cover rooted the cowardice of his antislavery judges in the “thoroughgoing positivism” of the era. But Powell was not a positivist. Indeed, he was not even a death-penalty abolitionist—at least not in the way we would normally understand that term. What, then, accounted for Powell pursuing such a remarkably similar—and similarly shoddy—moral, prudential, and jurisprudential course? In this essay, I dissect McCleskey v. Kemp. I argue that amoral positivism cannot explain the opinion. To understand Powell’s motivation, we must dig deeply into his biography. There we discover his abiding principled commitment to a particular brand of anti-positive hubris. Powell was a proud institutionalist—a moral orientation that constituted an implicit bias, which prevented him from considering adequately the moral interests of systemic outsiders. I conclude the essay with a sketch of the kind of judge who could better confront the quandary of whether to apply immoral law. Perhaps surprisingly, this judge is a type of positivist—a skeptical positivist.

Josh Bowers, McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride, 1 The American Journal of Law and Equality, 1–43 (2022).